December 2, 2020

Case Brief: The Secretary, Ministry of Defence vs. Babita Puniya and Ors.

Court: Supreme Court of India

Citation: MANU/SC/0194/2020

Coram: Dr DY Chandrachud, Ajay Rastogi, JJ

Theme: Women officials should be granted equal opportunity for recruitment in permanent commission in army.

Subject: Defence Law, Constitutional Law

Judgement: India

BRIEF FACTS

● In February 2003, a PIL under the watchful eye of the Delhi High Court looked for permanent commission for women officials enlisted through the Short Service Commission (SSC) in the military compared to their male associates.

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● Strategy amendment in 2006 permitted them to serve for a limit of 14 years as an SSC official.

● The Center chose in September 2008 to concede the permanent commission to SSC ladies officials in the Judge Advocate General office and Army Education Corps and their comparing branches in the Air Force and Navy.

● In March 2010, a Delhi High Court Bench admitted the appeal of such petitions and guided the Defense Ministry to stretch out permanent commission advantages to the SSC women officials of the Air Force and Army who had decided on permanent commission yet not conceded the equivalent. In July, the Army tested the request. It was on September 2, 2011 that the case arrived at the Apex Court in advance. The Apex Court held that the activity of the denounced judgment hasn’t remained in any way.

● In May 2018, Center disclosed to Apex Court that it is thinking about giving permanent commission to women officials enrolled through SSC in the Army. In August, PM Modi reported a significant move by announcing that women officials will have the option to decide on changeless commission in parts of the military separated from existing ones like law and instruction.

● In February 2019, the legislature brought a notification reporting permanent commission of women officials yet tentatively made it appropriate just to those women officials dispatched after this request. The serving officials were kept out of the ambit of this notification. In the same month, the Center issued a request for an award of perpetual commission to new SSC officials in eight battle bolster arms/administrations.

ISSUES

A journey for uniformity of chance for women officials looking for Permanent Commissions in the Indian Army shapes the premise of these interests.

ARGUMENTS

Arguments by the petitioner

● Grant of Permanent commissions – Under Section 10 of the 1950 Act, the award of commission is at the carefulness of the President of India. The nonattendance of an essential option to guarantee PC is strengthened by Section 12 of the 1950 Act by reason of which, no lady is qualified for work with the exception of in such corps and divisions as the Government of India may decide. The ability to give commission has a place with the President and no mandamus can be asserted from a court. Moreover, the order stipulated on Feb.25, 2019 has been in the national interest. It provides for the training of SSC women in specialized fields of language interpreting, imaginary interpreting etc. The reason for not providing women who are already in service is that after 14 years they have limited years of service left. Training them would result in a waste of resources.

● Pensionary Benefits – the women would be allowed to work if they have completed 14 years of service but not 20 years to attain pension without scrutiny. Those who have completed 20 years of service would be relieved immediately with a pension.

● Policy considerations- the question related to recruitment and grant of PC’s have been constituted as policy decisions and executive have exclusive domain over them. These provisions related to fundamental rights have been protected by Art.33 of the constitution. The scope of Judicial review in command and tenure have been limited as held by Union of India V PK Choudhary.

● Occupational Hazards- women are not employed as their male counterparts in combat services due to inherent risks.

● Discrimination – there has been no discrimination since there are extra benefits available to women officers like maternity leave which their male counterpart are deprived of.

● Ajay Vikram Singh committee – according to a report of the committee, the employment of more cadre into PC’s would disturb the organizational structure.

● Employment in staff appointments- The women officers are reinstated after the orders of Delhi High Court. Expanding the scope of the high court judgement would open a floodgate resulting in administrative issues.

● Moreover, the accommodation note of the Union of India has discussed “physiological restriction” on the employability of ladies officials “emphasized by the difficulties of imprisonment, parenthood and childcare”. At long last, the note forecasts the threats of a lady official being caught by the foe and turning into wartime captive.

Arguments by the respondent

● The council draws attention towards the shortage of officers in the army but it is still letting go trained women officers due to the gender discrimination and reinstating retired officers

● Battlefield Scenario- The argument of the petitioners lacks substance because the nature of duties given to the women officers is the same as that of their male counterpart.

● Unit cohesion- Denial to accept women as equal colleagues.

● National security- Women are still being commissioned to sensitive areas in spite of not being a part of combat arms

● pension and retirement benefits- The women officers who have been working for 14 years are not given these benefits

● The council argues that women officers are facing discrimination in the form of

(i) Lack of opportunity for professional growth;

(ii) Absence of job security due to the ambiguous status of the cadre; and

(iii) Rendering service under Junior Officers due to the lack of a uniform and equal promotion policy.[1]

● Services allotted to women officers through SSC are non-combative in nature.

● The Army manual provides the same duties for male and female officers.

● A policy of non-discrimination is followed by Army when it comes to posting the officers but the same isn’t followed while granting PC.

● Women officers undergo the same training for compulsory courses as their male counterparts who are considered eligible for PC.

JUDGEMENT

● The court held that a plain reading of section 12 of Army act asserts that the policy decision of UoI dated 25 February 2019 allows for PC of women officers in ten streams.

● This policy decision of UoI recognizes the right of women officers to equality of opportunity. This right has two facets
(i) Principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution.[2]
(ii) Equality of opportunity for all citizens in matters of public employment Under Article 16(1).[3]

● The court regarded the submissions given to it by UoI as one promoting sex stereotypes and gender discrimination. It is assumed that domestic responsibility rests solely on women. The idea that there is an “inherent psychological difference between men and women” is constitutionally flawed as assumes that women are the weaker sex.

PRESENT STATUS OF THE JUDGEMENT

Applicable all over India.

CONCLUSION

This landmark judgement provides permanent service to all women officials and makes them eligible for promotion, rank and pension.

[1] The Secretary, Ministry of Defence Vs. Babita Puniya and Ors., (2020), MANU/SC/0194/2020.

[2] Ibid.

[3] Ibid.

Contributed by: Nirvani Bhawsar and Riddhi Jain (Students, Nalsar University of Law)

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